ACLU alleges Tucson police unconstitutionally detain immigrants
After reviewing more than a year's worth of Tucson police records, the American Civil Liberties Union of Arizona said Monday that officers were prolonging traffic stops to investigate drivers' immigration status by holding them until Border Patrol agents could arrive, violating the civil rights of immigrants and the department's own policies.
In a letter sent to Tucson Police Chief Chris Magnus, the ACLU said that officers "are going out of their way" to hold people until BP agents arrive.
This practice goes beyond the requirements set by a section of Arizona's controversial SB 1070, which requires that officers make a "reasonable attempt" to determine a person's immigration status. This reflects a "fundamental misunderstanding of the Fourth Amendment’s prohibition on prolonging stops and limits on the authority of local police to enforce immigration laws," the ACLU said.
The ACLU noted that in the 2012, the U.S. Supreme Court ruled in Arizona v. United States that stops made solely to check immigration status that could "raise constitutional concerns." In a similar case, Rodriguez v. United States the court ruled that stops exceeding "the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures."
"I plan to give thoughtful consideration to the issues raised in the letter with an eye toward identifying any opportunities to improve our training, policies, and practices," Magnus told TucsonSentinel.com.
From June 2014 to December 2015, Border Patrol agents responded to requests from Tucson police officers 148 times.
In 38 instances, only a citation was issued, but in the remaining incidents, the ACLU said they found constitutional issues 85 times.
Most of these stops were "routine traffic stops," the ACLU said, involving minor infractions like suspended licenses or lack of insurance, which often result in citations and an immediate release.
However, these stops were extended for the "sole purpose" of awaiting Border Patrol agents. This includes incidents in which families with young children were detained so BP could apprehend their parents.
In some instances, TPD officers drove subjects to department stations to meet Border Patrol agents. Officers also detained passengers for transfer to Border Patrol custody.
The ACLU also found that in more than a dozen instances, legal residents and U.S. citizens were held for extended times to await for Border Patrol following false positives, forcing them to wait until immigration agents could confirm their legal status.
Stops could last anywhere from 15 minutes to three hours, the ACLU said.
This instances not only raise constitutional issues, but violate a 2015 general order from former TPD Chief Roberto Villaseñor, which told officers that detentions should not be extended to wait for a response from Border Patrol, and once the basis for a detention is concluded, the "detainee shall be released without delay."
Attempting to balance between what he said was a necessary enforcement of the law, and public outcry over SB 1070, Villaseñor issued the order, and reminded officers that "mere unauthorized presence in the United States is not a criminal offense, and enforcement of such civil violations is reserved for federal authorities."
However, the records gathered by the ACLU showed that TPD supervisors have "provided inaccurate guidance" to officers regarding their legal authority.
This includes telling officers stops involving Border Patrol are not "restrained by time," the ACLU said. The ACLU also said that the department has not continued to train officers on the department's immigration policy since July 2014, when a 12-page online training course was given to officers.
"These fundamental oversight failures are a recipe for abuse," said Victoria Lopez, the legal director of the ACLU of Arizona. "There is no excuse for TPD supervisors providing false and contradictory guidance on the strict limits of officers’ immigration authority, or for providing officers with such minimal training on key developments in relevant case law and numerous revisions to TPD immigration policy in recent years."
"Information in the ACLU letter will be of value in our evolving efforts to retain and further strengthen a trusting relationship with all members of the community, as we endeavor to fairly enforce the law," TPD's Magnus said.
The ACLU also sent a similar letter to Homeland Security Secretary Jeh Johnson, saying that Border Patrol's participation in the prolonged traffic stops shows a "disregard for DHS enforcement priorities" by contradicting efforts from administration officials to "limit the involvement of federal immigration officials in traffic stops by Arizona law enforcement."
The Department of Homeland Security is reviewing the letter, said agency spokesman Carlos Lazo.
"U.S. Customs and Border Protection continues to focus its enforcement resources in adherence to Secretary Johnson's priorities for immigration enforcement, focusing its resources on public and national threats," Lazo said.
"TPD’s own records confirm what Tucson community members have been saying for years," said James Lyall, an ACLU staff attorney. "Officers are going out of their way to transfer people to Border Patrol, regardless of the delay that results or the fact that SB 1070 does not—and cannot—authorize prolonged detention."
"These practices are blatantly unconstitutional and profoundly undermine the community’s trust in law enforcement," Lyall said.